Wolfe v. Supreme Lodge, Knights and Ladies of Honor

Decision Date12 March 1901
Citation160 Mo. 675,61 S.W. 637
PartiesWOLFE et al. v. SUPREME LODGE, KNIGHTS AND LADIES OF HONOR.
CourtMissouri Supreme Court

Appeal from St. Louis circuit court; H. D. Wood, Judge.

Action by Emily E. Wolfe and another against the Supreme Lodge, Knights and Ladies of Honor. Judgment for plaintiffs. Defendant appeals. Affirmed.

This is an action on a benefit certificate issued by the defendant, a benevolent organization, by the beneficiaries therein, the mother and grandmother, respectively, of Alexander L. De Mars, deceased, a member of said order, for the amount of said certificate, $3,000. The case was tried on the issue raised by plaintiffs' reply to the affirmative defense set up in defendant's answer, the allegations in the petition being admitted. The evidence disclosed that plaintiffs were the mother and grandmother of deceased, the insured, who was a young man about 19 years old, and a brass worker, at the time his application was made for membership in the order. Just at the time he was admitted into the organization he was out of work, owing to a disagreement with his employer over his wages. The evidence was very conflicting as to the state of his health at the time of his application for membership. It appears, however, that he was duly examined by the regularly appointed physician of the order, the risk accepted, and De Mars was, on June 20, 1895, duly initiated into Royal Lodge at St. Louis. On the part of plaintiffs there was a number of witnesses who testified that he was in good health about the time of the application. Indeed, it seems uncontradicted that he participated in a cake walk and dance given by the lodge the meeting before the one at which he made his application to said lodge, and shortly afterwards, when he was initiated, he was required to walk several times around the lodge room, and was subjected to close scrutiny by the guides and members. The medical examiner certified the following questions and answers: "Have you made careful auscultation and percussion of the thorax?" "I have." "Is the character of the respiration full, easy, and distinct over both lungs?" "It is." "Is there any indication of disease of the organs of respiration or their appendages?" "None." "In your opinion, is there any habitual cough, or expectoration, or occasional difficulty in breathing?" "None." De Mars died in April, 1896. Payment was refused on the ground that he had made untruthful answers to questions put to him by the medical examiner. He was asked if he was "afflicted with any lung disease," and answered "No"; and asked "how long since he had been attended by a physician, or have professionally consulted one," and he answered, "Haven't had any," and stated that he was in good health at that time, and that he usually enjoyed good health. On the part of the defendant the evidence tended to show that between the dates of December 10, 1894, and March 15, 1895, De Mars consulted with and was prescribed for by Dr. Grant; that when he went to Dr. Grant's office he was accompanied by his mother: that he made three visits to Dr. Grant, and that the doctor told the mother that the boy was in a serious condition; that on April 11, 1895, De Mars, accompanied by his mother, consulted with and was prescribed for by Dr. Barker, and that Dr. Barker told the mother that the boy was afflicted with consumption. Dr. Barker, with his office book in his hands, while on the witness stand gave dates during April, May, June, July, August, and up to February, 1896, when De Mars called at his office for treatment; that the whole treatment given De Mars during all of the spring, summer, and fall of 1895 and the early part of 1896, from beginning to end, was for consumption. Dr. Barker also testified that De Mars and his mother called at his office in the month of April, the month before the application was made; that De Mars was at that time emaciated, and of a bluish color, and that he told the mother at that time that her son had lung disease, and was in a serious condition. That was also contradicted by Mrs. Wolfe, who said that it was in August when she and her son went to Dr. Barker's office. While Dr. Barker was on the witness stand he had his book in his hand, and we find in the record the following reference to it: "Q. When did you begin that treatment? A. I can give you the exact date by referring to my book. Q. Refer to it, and refresh your memory. A. I have here a memorandum, obtained from this book for convenience. The first time — Mr. Rowe: I object to your using that paper. The Court: You can refer to your book. Q. How many visits did he make to you after the 11th day of April, 1895? A. Well, if I could refer to this list I have copied from this book, I could tell in a moment. * * * The Court: You may use your list, and refer to your book to see if it is accurate." When this witness again took the stand for defendant in rebuttal, he again made use of the book, and explained private marks made by him in it, at which time the following took place, viz.: "Mr. Estes: I want to show the jury this. (Book passed around to the jury.) Q. Where is the name De Mars there? What does that stroke mean? A. That stroke means that day, the 11th, I prescribe for him at my office. * * *" Afterwards, when the book was offered in evidence, it was rejected by the court on the ground that, if the book was intended to have been offered, it should have been offered in chief. Dr. Kerley, who was the family physician of Mrs. Wolfe, testified that he prescribed for De Mars in November, 1894, for remittent fever, and did not see the boy again until the 1st of December, 1895, when he made an examination, and found that the boy's lungs were "rapidly breaking down"; but says the boy died of gangrene of the lungs, and not of consumption. Mrs. Wolfe, the mother of the boy, stated that she never went to see Dr. Grant until this suit was instituted, and then only went at the direction of her counsel, to find out what the doctor would testify to on the trial of her case against this defendant; that her son was well and strong until the latter part of 1895; and she also stated — and in this she was corroborated by her mother, co-plaintiff herein — that she and her son did not consult Dr. Barker until August, 1895, and that the doctor told her the boy would be all right in a short while. There was testimony given by the neighbors of Mrs. Wolfe and by lodge members, many of them saying that the boy was a consumptive, and others saying that he looked all right. The case was submitted to a jury on instructions given by the court of its own motion; the plaintiffs offering no instructions, and the court refusing those offered by the defendant. The jury brought in a verdict for plaintiff's for the amount named in the benefit certificate, and, after unsuccessfully moving for a new trial, the defendant appealed.

The court, of its own motion, gave instructions Nos. 1 and 2 as follows: "(1) The court instructs the jury that it is admitted by the defendant that one Alexander L. De Mars made a written application to, and was admitted as a member of, the defendant order, and that the defendant issued to him the certificate read in evidence in the sum of three thousand dollars, payable to the plaintiffs as his beneficiaries; and that said De Mars died on April 12, 1896, and due proof of his death was furnished to the defendant. The defense is that the plaintiffs have forfeited their right to any benefit under the certificate by reason of the following answers made by said De Mars in his said application, which are alleged by the defendant to be untrue, and known by the said De Mars to be untrue at the time of making his said application, to wit: `Q. Have...

To continue reading

Request your trial
21 cases
  • Metropolitan Casualty Ins. Co. v. Cato
    • United States
    • Mississippi Supreme Court
    • 13 Febrero 1917
    ... ... CO. v. CATO No. 18795 Supreme Court of Mississippi February 13, 1917 ... In ... Smith v. Supreme Lodge, 62 Kan. 75, 61 P. 416, it was ... said: "He ... ...
  • Christensen v. McCann
    • United States
    • Wyoming Supreme Court
    • 10 Diciembre 1929
    ... ... McCANN ET UX. [ * ] No. 1576 Supreme Court of Wyoming December 10, 1929 ... ...
  • Davidson v. St. Louis Transit Co.
    • United States
    • Missouri Supreme Court
    • 2 Abril 1908
    ...negligence on the part of defendant, instead of limiting them to the particular act of negligence counted on in the petition. Wolfe v. Supreme Lodge, 160 Mo. 675; Abbott Railroad, 83 Mo. 278; Price v. Railroad, 72 Mo. 419. (2) Instruction 2, defining the measure of damages, given at plainti......
  • Davidson v. St. Louis Transit Co.
    • United States
    • Missouri Supreme Court
    • 27 Febrero 1908
    ... ... ST. LOUIS TRANSIT CO ... Supreme Court of Missouri ... February 27, 1908 ... It is a difficult matter, your honor, to decide these questions, because we find so ... Wolfe v. Supreme Lodge, 160 Mo. 675, 61 S. W. 637; ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT